05-6773 -cv Seidemann v. Bowen
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2006
(Argued: December 20, 2006 Decided: August 1, 2007)
Docket No. 05-6773-cv
--------------------------------------------------------------------x DAVID SEIDEMANN,
Plaintiff-Appellant, -v.-
BARBARA BOWEN, PERSONALLY AND IN HER CAPACITY AS PRESIDENT OF THE PSC/CUNY (PROFESSIONAL STAFF CONGRESS/CITY UNIVERSITY OF NEW YORK), AND PSC/CUNY*
Defendants-Appellees, -------------------------------------------------------------------x
Before: HON. ROSEMARY S. POOLER, HON. ROBERT D. SACK, HON. PETER W. HALL, Circuit Judges.
Plaintiff-Appellant David Seidemann appeals from an order of the United States District Court for the Eastern District of New York (Bloom, M. J.) granting summary judgment in favor of Defendants. We hold that a union may not require agency fee payers to object annually to expenditures unrelated to the collective bargaining process. REVERSED and REMANDED.
Phineas E. Leahey, Davis Polk & Wardwell, New York, New York, for Plaintiff-Appellant.
James R. Sandner, (Christopher M. Callagy, Bryan D. Glass, on the brief), New York, New York, for Defendant-Appellee.
* We direct the Clerk of Court to amend the official caption as noted above. HALL, Circuit Judge:
Plaintiff David Seidemann is a tenured professor at Brooklyn College/City University of
New York (“CUNY”) and a nonunion employee, or “agency fee payer.” Defendant Professional
Staff Congress of the City University of New York (“PSC/CUNY”) is a public-sector union
designated as the exclusive collective bargaining representative for certain CUNY employees like
Seidemann. Barbara Bowen is the president of the PSC/CUNY.
In 2002, Seidemann filed written objections with the union seeking to reduce his agency
fee for charges he alleges are not related to the collective bargaining process. He brought this
action against Defendants alleging that PSC’s agency fee procedures are inconsistent with the
First Amendment and the duty of fair representation. Several times during pretrial litigation the
union revised the procedures by which nonmembers may make such objections, and because of
admitted past violations, PSC refunded Seidemann’s agency fees for the 2001-2004 fiscal year,
with interest. Thereafter, the parties and the court addressed only the agency fee procedures
adopted on April 30, 2003.
According to the April 2003 procedures, prior to the annual objection period PSC must
provide agency fee payers with information regarding the previous fiscal year’s rebatable
expenditures. Pursuant to this provision, PSC annually sends agency fee payers a notice letter
with a copy of the agency fee procedure outlining the objection procedures, and agency fee
payers have between May 1 and May 31 to mail their objections.1 Objecting fee payers are then
entitled to an advanced rebate for the projected pro rata amount of expenditures not related to the
1 As discussed below, there is a question of fact as to the actual content of PSC’s notice letter.
2 collective bargaining process. If the objector is dissatisfied with the amount of the advance
rebate or disputes whether a category of expenditures is a component of collective bargaining, the
objector may appeal the determination in writing to the union president within thirty-five days
and the union will submit the matter to a neutral arbitrator for an “expeditious” hearing.
After Seidemann filed his third amended complaint, the parties cross-moved for summary
judgment. The Magistrate Judge2 granted summary judgment in favor of Defendants and
dismissed the action.
Seidemann makes several arguments on appeal. First, he asserts the union’s requirement
that objections be renewed annually and its refusal to accept continuous objections violates the
First Amendment. Seidemann further challenges the requirement that persons in his position
identify the percentage of political and ideological expenditures in dispute as a precondition to
arbitration, and he objects to the sufficiency of the notice given. Seidemann also asserts the
district court erred in holding some of his claims to be moot. Finally, he insists the court
erroneously dismissed his suit without addressing his claim asserting breach of duty of fair
representation.
I. DISCUSSION
A. Requirements for Objecting Agency Fee Payers
Generally, employees who do not choose to join the union must still pay union dues;
these employees are referred to as “agency fee payers.” For such employees, the employer
deducts agency fees equivalent to the amount of union dues from their paychecks and remits
2 The parties consented to adjudication by the Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1).
3 those fees to the union. Although fee payers must pay union fees even if they are not union
members, they are entitled to notice of the union’s expenditures not related to the collective
bargaining process—i.e., expenditures for items political and ideological in nature—and may
obtain a refund of their pro rata share of those expenditures by filing timely objections with the
union. Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 524 (1991); Chicago Teachers Union,
Local No. 1 v. Hudson, 475 U.S. 292, 303 (1986).
So-called “agency-shop” arrangements that compel all employees within a bargaining unit
to pay agency fees as a condition of employment are permitted in light of “the government’s
interest in promoting labor peace and avoiding the free rider problem that would otherwise
accompany union recognition.” Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 511, 520-21
(1991); see also Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 472 (1997) (citing
Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)). “However, agency-shop arrangements in
the public sector raise First Amendment concerns because they force individuals to contribute
money to unions as a condition of government employment.” Davenport v. Wash. Educ. Ass’n,
127 S.Ct. 2372, 2377 (2007). To safeguard employees’ constitutional rights, therefore, unions
must allow employees who do not wish to be union members to be able to object to the payment
of portions of the union fee that are not related to collective bargaining. See Int’l Ass’n of
Machinists v. Street, 367 U.S. 740, 768-69, 774 (1961) (noting such employees must “identif[y]
themselves as opposed to political uses of their funds”). The Supreme Court specifically
addressed union dues collection in the public sector in Abood v. Detroit Board of Education., 431
U.S. 209, 235-36 (1977), holding that it is unconstitutional for a union to collect sums from
dissenting employees to support political and ideological causes not germane to the union’s
4 duties as a collective-bargaining agent. See also Ellis v. Bhd. of Ry., Airline, & S.S. Clerks, 466
U.S. 435, 447 (1984) (same); Bhd. of Ry & S.S. Clerks v. Allen, 373 U.S. 113, 118-19 (1963)
(same). To achieve the appropriate balance between constitutional and unconstitutional
collections, the union must “devise a way of preventing compulsory subsidization of ideological
activity by employees who object thereto without restricting the Union’s ability to require every
employee to contribute to the cost of collective-bargaining activities.” Abood, 431 U.S. at 237.
Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 303 (1986), established
three requirements for the procedures unions put in place to handle public employees’ objections
to fee allocations intended to minimize the risk that objectors’ First Amendment rights will be
burdened. Principally, the procedures must “minimize the risk that nonunion employees’
contributions might be used for impermissible purposes.” Id. at 309. Second, they must provide
adequate “information about the basis for the proportionate share” of the union expenses fee
payers must pay. Id. at 306; see also id. at 309 (reiterating that although the nonmember
employee has the “burden of raising an objection, . . . the union retains the burden of proof” with
respect to apportionment and notification to the fee payers of the appropriate payment); accord
Allen, 373 U.S. at 122 (“Since the unions possess the facts and records from which the
proportion of political to total union expenditures can reasonably be calculated, basic
considerations of fairness compel that they, not the individual employees, bear the burden of
proving such proportion.”). Finally, a union procedure must “provide for a reasonably prompt
decision by an impartial decisionmaker” adjudicating fees that are in dispute. Hudson, 475 U.S.
at 307.
5 Procedural safeguards prevent “compulsory subsidization of ideological activity . . .
without restricting the Union’s ability to require every employee to contribute to the cost of
collective-bargaining activities.” Id. at 302 (internal quotation marks omitted). Although the
government interest in a stable labor force is strong, the fact that constitutional rights are
protected by the First Amendment requires the union procedures be carefully tailored to
minimize the risk of burdening employee’s First Amendment rights. Id. at 302-03 (procedures
must “minimize the infringement”). Nonunion employees, “whose First Amendment rights are
being affected[] must have a fair opportunity to identify the impact of the governmental action on
[their] interests and to assert a meritorious First Amendment claim.” Id. at 303.
It is in light of these principles and requirements that we examine the agency fee
procedures at issue here. We conclude that PSC’s procedures for dealing with agency fee payers’
objections fail to minimize the risk that objectors’ First Amendment rights will be burdened and
are therefore unconstitutional. Id.
B. Annual Objection Procedures
This Circuit has mandated that unions use “narrowly drawn” objection procedures to
protect the First Amendment rights of agency fee payers, while allowing unions and government
to pursue their needs in “establishing a rational system to consummate labor negotiations.”
Andrews v. Educ. Ass’n of Cheshire, 829 F.2d 335, 339 (2d Cir. 1987). Although we have not
required that objection procedures be the “least restrictive” means available, they must,
nonetheless, be “narrowly drawn” to comply with the strictures imposed by Hudson. Andrews,
829 F.2d at 339-40; cf. Price v. Int’l Union, UAW, 927 F.2d 88, 92 (2d Cir. 1991) (distinguishing
cases involving private employee unions from public sector union cases, where constitutional
6 concerns warrant the Hudson safeguards). The issue of principal concern to us in this case is
whether requiring agency fee holders to object annually to payment of expenses other than for
costs of collective bargaining meets this mandate.
The Fifth Circuit addressed the issue in Shea v. Int’l Ass’n of Machinists & Aerospace
Workers, 154 F.3d 508, 515-17 (5th Cir. 1998), and held that an annual objection requirement
failed to meet the Hudson standards. Acknowledging that other cases, discussed below, had
decided whether annual objections were permissible only as related to a union’s duty of fair
representation, the Fifth Circuit instead examined the requirement to ensure that it followed
Hudson’s admonition that a union “adopt those reasonably practicable procedures that least
interfere with an objecting employee’s exercise of his First Amendment rights.” Shea, 154 F.3d at
517. “[T]he procedure that least interferes with an employee’s exercise of his First Amendment
rights is the procedure by which an employee can object in writing on a continuing basis.” Id. at
515. The union in Shea, moreover, had proffered no legitimate reason for requiring annual
objections. Id. “[I]n the absence of such a reason . . . the annual written objection procedure is an
unnecessary and arbitrary interference with the employees’ exercise of their First Amendment
rights.” Id.; see also Lutz v. Int’l Ass’n of Machinists & Aerospace Workers, 121 F. Supp. 2d 498,
506 (E.D. Va. 2000) (analyzing the propriety of annual objection requirements under the First
Amendment and concluding that because such requirements burden the First Amendment rights of
nonmembers while offering no legitimate benefit to the union, they are not carefully tailored to
minimize the risk that objectors’ First Amendment rights will be burdened and are thus invalid).3
3 The Seventh Circuit also addressed annual objection requirements, albeit only briefly, in considering overall procedures established by a public teachers’ union. Tavernor v. Ill. Fed’n of Teachers, 226 F.3d 842, 848-49 (7th Cir. 2000). The court stated that, in addition to other
7 As did the court in Shea, we note that two other Circuits have reached a contrary
conclusion with respect to annual objections. The Sixth Circuit merely observed that Hudson
had placed the burden of objection on the employee and concluded therefore that the annual
objection procedure was not “unreasonable.” Tierney v. City of Toledo, 824 F.2d 1497, 1506
(6th Cir. 1987). The D.C. Circuit also upheld an annual objection requirement in Abrams v.
Commc’ns Workers of Am., 59 F.3d 1373, 1381-82 (D.C. Cir. 1995), stating simply that the
annual objection procedure was “permissible” in light of Street’s directive that “dissent is not to
be presumed.” 59 F.3d at 1382 (quoting Street, 367 U.S. at 774) (internal quotation marks
omitted). The plaintiffs in Abrams had asserted that the annual objection procedure violated the
union’s duty of fair representation. The Abrams court did not specifically base its holding on the
union’s providing fair representation, but by the same token, it did not discuss First Amendment
requirements as elucidated by Hudson.
We are persuaded by the Fifth Circuit’s analysis in Shea, which is most in line with this
Circuit’s jurisprudence regarding agency fee procedures and our reading of Supreme Court
precedent. See Shea, 154 F.3d at 515-17; see also Tavernor v. Ill. Fed’n of Teachers, 226 F.3d
842, 848-49 (7th Cir. 2000); Lutz, 121 F. Supp. 2d at 506. Although the Supreme Court in
Street, 367 U.S. at 774, placed the burden of making an initial objection on the employee,
nothing in Street or the subsequent decisions of the Supreme Court suggest that merely because
onerous and lengthy requirements for objection, which can take up to a year to complete, the union “requires objections to be renewed annually, which places an additional burden on objectors.” Id. at 849. The Tavernor court, citing Shea, commented that because of this additional burden: “No sooner does the objector complete one round than, like Sisyphus with his rock, he must begin anew with another.” Id. The court asserted the emphasis should be on “minimiz[ing] the burden on the objectors’ First Amendment rights.” Id.
8 an employee must initially make his objection known, a union may thereafter refuse to accept a
dissenter’s notice that his objection is continuing. See Davenport,127 S.Ct. at 2379 (stating that
with respect to Street’s requirement that dissent is not to be presumed, “[w]e meant only that it
would be improper for a court to enjoin the expenditure of the agency fees of all employees,
including those who had not objected, when the statutory or constitutional limitations established
in those cases could be satisfied by a narrower remedy.”); see also Shea, 154 F.3d at 515
(“Nothing in [Street or subsequent cases] requires repeated objection.”). The fact that employees
have the responsibility of making an initial objection does not absolve unions of their obligation
to ensure that objectors’ First Amendment rights are not burdened. Davenport, 127 S.Ct. at
2379; Hudson, 475 U.S. at 303; Andrews, 829 F.2d at 339.
Here, PSC’s annual objection requirement burdens employees exercising their
constitutionally protected right to object, and the union has proffered no legitimate need for
disallowing continuing objections. See Shea, 154 F.3d at 515. While PSC suggests that it wants
to take advantage of inertia on the part of would-be dissenters who fail to object affirmatively,
thus preserving more union members, that rationale cannot carry the day in light of Hudson’s and
Andrews’s requirements that procedures for objecting be drawn narrowly. See Shea, 154 F.3d at
515 (noting the union had asserted no legitimate interest and therefore the “unduly cumbersome”
annual objection requirement “serves only to further the illegitimate interest of the [union] in
collecting full dues from nonmembers who would not willingly pay more than the portion
allocable to activities germane to collective bargaining”). We hold the annual objection
requirement imposed by PSC in this case is an unnecessary burden on an employee’s exercise of
First Amendment rights. See Hudson, 475 U.S. at 303, 309.
9 C. Identification of Particular Expenditures
Seidemann asserts the union’s requirement that agency fee payers object to the specific
percentage of expenditures in dispute as a pre-condition to arbitration is also unconstitutional.
PSC requires that in order for an objector to obtain arbitration of a disputed fee, “s/he must
indicate to the union local president the percent of agency fees that s/he believes is in dispute.”
We agree that this is improper.
The Supreme Court has specifically and consistently rejected the notion that dissenters
must object with particularity. The first suggestion that general objections to union fees would
be sufficient to preserve a dissenter’s rights came in Allen, 373 U.S. at 118, which stated that
“[i]t would be impracticable to require a dissenting employee to allege and prove each distinct
union political expenditure to which he objects; it is enough that he manifests his opposition to
any political expenditures by the union.” Although Allen refers to the sufficiency of an objection
necessary to preserve the employee’s right to sue for a First Amendment violation, the Court in
Abood furthered Allen’s holding and specifically prevented unions from requiring particularized
objections. Abood, 431 U.S. at 239 n.39 & n. 40, 241 (noting any implication in Street that
employees were required to voice particularized objections was rejected in Allen). The Court
reiterated in Air Line Pilots Association v. Miller, 523 U.S. 866, 878 (1998), that “when pursuing
the union’s internal remedies, an objector may preserve the right to subsequent judicial relief
without ‘indicat[ing] to the Union the specific expenditures to which he objects.’” (quoting
Abood, 431 U.S. at 241) (emphasis in Abood). Moreover, requiring particularized objections to
preserve an objector’s rights to dissent places an additional unnecessary burden on objectors in
violation of the Court’s holding in Hudson. 475 U.S. at 303; see also Andrews, 829 F.2d at 339.
10 Accordingly, PSC’s requirement that agency fee payers must assert particularized objections as a
sine qua non to obtain review by an impartial decision-maker violates Seidemann’s constitutional
right to dissent.
D. Sufficiency of Notice
Seidemann contends that the notice the union provided him was insufficient under
Hudson because it does not allow would-be dissenters “to gauge the propriety of the union’s fee.”
Hudson, 475 U.S. at 306. Seidemann makes two arguments with respect to the notice received.
First, he asserts the notice fails to provide sufficient information to fee payers. Second, he claims
the notice either mischaracterizes information or conceals it from agency fee payers. We address
the notice letter first.
Seidemann argues PSC violates Hudson’s notice requirement because PSC’s notice letter
fails to provide potential fee payers with information about the union’s finances. PSC contends
the notice letter meets Hudson requirements because it directs fee payers to the union’s website,
which contains the necessary financial information. The district court concluded that a notice
letter directing potential fee payers to a union website that contains the required financial
information on union expenditures is sufficient under Hudson. The record, however, contains
two notice letters, and it is unclear which notice letter the court relied on to reach its
determination that the letter was sufficient under Hudson. There is a notice letter that directs
potential fee payers to the union website, dated June 20, 2003, and a notice letter dated April 15,
2004, that neither provides financial information nor directs potential fee payers to a union
website. Because the record contains two inconsistent versions of the letter, there remains a
11 factual dispute as to its contents. The grant of summary judgment on this point was therefore
inappropriate.
Seidemann next contends the financial information available to agency fee payers
mischaracterizes expenditures because it lists political and ideological expenses under innocuous,
seemingly appropriate, categories of expenses such as “office supplies,” and then charges fee
payers for 100% of those expenditures. As evidence that the union concealed information from
potential fee payers, Seidemann points to detailed budget reports sent to union delegates that
contain “critical information” about expenditures that was withheld from agency fee payers.
First, we reiterate that there is a factual issue with respect to the contents of the letter.
However, because that factual dispute appears to be limited to whether or not the letter directs
potential fee payers to the union website, we will address Seidemann’s claims here to help clarify
the issue.
Seidemann’s argument on this point conflates the requirements of Hudson and those of
Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991). While in Hudson the Supreme
Court addressed the adequacy of the notice to fee payers, in Lehnert, the Supreme Court
articulated the requirements for evaluating the propriety of a union’s determinations with respect
to what could and could not be charged: “chargeable activities must (1) be ‘germane’ to
collective-bargaining activity; (2) be justified by the government’s vital policy interest in labor
peace and avoiding ‘free riders’; and (3) not significantly add to the burdening of free speech that
is inherent in the allowance of an agency or union shop.” Id. at 519. There is a “clear distinction
between the adequacy of a union’s notice, addressed by the Supreme Court in Hudson, and the
propriety of a union’s chargeability determinations, considered separately by the Supreme Court
12 in Lehnert.” Jibson v. Michigan Educ. Ass’n-NEA,, 30 F.3d 723, 730 (6th Cir. 1994); accord
Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 813-14 (9th Cir. 1997); Hudson v.
Chi. Teachers Union, 922 F.2d 1306, 1314 (7th Cir.1991) (holding plaintiffs “mistakenly
equate[] the adequacy of the notice with the accuracy of the fee assessment” (internal quotation
marks omitted)). As the Seventh Circuit stated, “Hudson did not contemplate that federal courts
would be required, on the basis of the notice, to pass on the legality and accuracy of every
element of the fee calculation before any fees could be collected.” Hudson, 922 F.2d at 1314.
Although PSC’s procedure for impartial review of disputed expenditures will require
revision, as discussed above, this Court may not at this stage substitute itself for the impartial
decisionmaker mandated by Hudson and go on to consider disputes regarding the proportion of
fees that my be charged. “Of course, the impartial decisionmaker’s determination is not the final
word on the challenge. If the decision is adverse to the plaintiff[], [he] may subsequently seek
review by a federal court.” Id. (citing Hudson, 475 U.S. at 308 n.21). Thus, to the extent that
Seidemann is suggesting that the letter provides insufficient notice of expenditures to allow
potential fee payers to make an adequate objection as required by Hudson, the district court
should consider those claims in the first instance. Indeed, while Hudson does not mandate that
potential fee payers receive all of the financial information union delegates may receive, the
union must provide adequate “information about the basis for the proportionate share” of union
dues to allow fee payers to make an accurate objection to the non-chargeable portions of the
dues. Hudson, 475 U.S. at 306. Lehnert, in turn, sets out the parameters for deciding what is and
is not chargeable. Lehnert, 500 U.S. at 519. Thus, we remand to the district court to ensure the
notice letter provides adequate information under Hudson. If and when the notice in the letter is
13 deemed adequate, the “neutral party appointed by the American Arbitration Association”
referenced in PSC’s agency refund procedure must in the first instance determine the
appropriateness of the expenditures under Lehnert.
E. Mootness
The district court refused to address Seidemann’s claims that the agency fee procedures
violate the holding in Lehnert because they allow nonmember employees to be charged for
political and ideological expenditures. See 500 U.S. at 519. The court concluded that because
PSC had refunded entirely Seidemann’s fees for fiscal years 2001 to 2004, “any specific
objections plaintiff may have claimed for [those years] are now moot.” Thus, the court did not
address the claim.
The voluntary cessation of allegedly illegal activities can moot a claim only “if the
defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation
will recur and (2) interim relief or events have completely and irrevocably eradicated the effects
of the alleged violation.” Granite State Outdoor Advert., Inc. v. Town of Orange, Conn., 303
F.3d 450, 451 (2d Cir. 2002) (per curiam) (quoting Campbell v. Greisberger, 80 F.3d 703, 706
(2d Cir. 1996)). Ordinarily, a party’s “voluntary cessation of allegedly unlawful conduct . . . does
not suffice to moot a case.” N.Y. Pub. Interest Research Group v. Whitman, 321 F.3d 316, 327
(2d Cir. 2003) (quoting Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 174 (2000))
(internal quotation marks omitted). Accordingly, a party “claiming that its voluntary compliance
moots a case bears the formidable burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur.” Id. (quoting Laidlaw, 528 U.S. at
14 190); see also N.Y. Pub. Interest Research Group, 321 F.3d at 327 (concluding that although
state agency’s implementation of changes promised in letter of commitment indicated degree of
“good faith,” actions were insufficient to “carr[y] the formidable burden of making absolutely
clear that the problems identified . . . could not reasonably be expected to recur” (internal
quotation marks and citations omitted)).
We conclude that the Union in this case has not met the “formidable burden” of
demonstrating that its prior unlawful conduct is unlikely to recur. In fact, Seidemann asserts on
appeal that violations have already recurred. We do not address the merits of Seidemann’s
claims on this point, but we conclude only that the claims are not moot and therefore remand to
allow the district court to address in the first instance PSC’s determinations regarding which fees
may be charged to agency fee payers.
F. Duty of Fair Representation
Finally, we note that the district court dismissed Seidemann’s suit without addressing his
state law duty of fair representation claim. On remand the district court must address this issue
in the first instance. See, e.g., Thompson v. County of Franklin, 15 F.3d 245, 253-54 (2d Cir.
1994) (declining to address res judicata issue in first instance).
II. CONCLUSION
We hold that PSC’s procedures requiring agency fee payers to file annual objections and
to specify percentages of expenditures in dispute to obtain arbitration violate Seidemann’s First
Amendment rights. We further hold that PSC has not demonstrated that its agency fee procedure
15 violations are unlikely to recur. For the foregoing reasons, we reverse the district court’s grant of
summary judgment and remand for further proceedings. REVERSED AND REMANDED.